How Congress Took Control of Indians’ Lives

Just as Congress has stretched its Interstate Commerce Power into authority over the entire national economy, so it has used the Indian Commerce Clause to justify micro-managing the lives of American Indians and of their tribes.

It wasn’t supposed to be that way.

The Articles of Confederation gave Congress power over Indian ‘affairs,’ but in practice the states also continued to exercise authority over Indians. States passed trade laws, regulated Indian land transactions, and in some cases exercised a general police power over Indians within their boundaries.

When the Constitution was adopted, the federal government was granted some control over dealings with the Natives. However, this was one of the very few areas where the Constitution actually granted the new government less authority than Congress had enjoyed under the Confederation. Instead of sweeping power over Indian ‘affairs,’ the Constitution granted (1) to the President-and-Senate, power to make treatise with the Natives, (2) to Congress, power over federal property and territories (where many tribes lived), and (3) also to Congress, the power to ‘regulate Commerce . . . with the Indian tribes.’

The Treaty Clause (II-2-2) empowered the President-and-Senate to govern the details of Indian relations, but only with the consent of the affected tribes, since both sides must agree to a treaty. The Territories and Property Clause (IV-3-2) granted Congress power to regulate tribes, but only on federal land. The Indian Commerce Clause (I-8-3) gave Congress control over mercantile trade and certain related activities. The specific model in the Indian area consisted of state Indian trade statutes and a Confederation ordinance that addressed such matters as preventing fraud, licensing merchants, and regulating prices.

Also part of the constitutional settlement was that the states retained their general police power over Indians within their borders, subject to pre-emption by congressional regulations of commerce and by treaties.

This system began to break down in the 1870s with the announcement by Congress that the federal government would no longer make treaties with the Indians. How Congress could bind the President-and-Senate this way was never adequately justified or explained.

Congress then began to regulate Indian affairs on the basis that doing so was part of its ‘inherent sovereign authority’ ‘”supposedly unenumerated authority outside the Constitution. The theory of ‘inherent sovereign authority’ is complete jurisprudential nonsense, and contradicted by both the intent and words of the Tenth Amendment. Although the Supreme Court rejected the theory in Kansas v. Colorado (1907), it continues to surface from time to time.

Also cited as justifying wide congressional authority was the ‘trust relationship’ between the federal government and the Indians. But trust rules do not grant power; they merely set standards by which power is to be executed.

In the area of Indian commerce, moreover, apologists for Congress often go even farther, claiming that congressional authority over Indian affairs is exclusive‘”that states have no jurisdiction over Indians at all. There is little justification for this theory, and it has proved unworkable in practice.

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In 2007, I researched and wrote an article called The Original Understanding of the Indian Commerce Clause. During the research, I found that the state of the commentary on the Indian Commerce Clause was even more dismal than in most other areas of constitutional law. Most of articles on the constitutional background consist of interventions by activists and others with little knowledge of the Founding Era or of originalist methodology.

Bottom line: Reading the Constitution according to its real meaning shows that, although Congress was to have a significant say in Indian affairs, its rightful power is far from absolute. Both Indians and non-Indians need to inform Congress of this much more often.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution(Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.

25 thoughts on “How Congress Took Control of Indians’ Lives”

Under the Declaration of Independence, there must have been an oversight or outright mistake. Because on hand hand it is stated (accurately so), that ALL Men ARE CREATED EQUAL and are Endowed by their Creator wih certain unalienable Rights…AND…all the while with the other hand taking away those Rights from the original Citizens of this piece of real estate we later called "America." Is that "Liberty and Justice for All?" I could go on with innumerable inconsistencies, but what good would that do? Until we truly see, and treat ALL Men as Equals (regardless where that man may reside) we've got a problem…AND WE ARE IT!

Fpor some (most?) rules, there are exceptions. The rules and allowed exceptions are part of civilization. Is a baby born with a birth defect created equal. If a culture wants to kill people who are different from that culture, has that culture made its members unequal? If the "Indians" had proper immigration laws and had
enforced them, the Indians would have a protected Indian culture today. The Indians were not organized enough to have proper immigration laws. US citizens today are not organized (educated? civilized? motivated?) enough to enfore the immigration laws handed down to us by our previous US generations. This begs the question: Is the USA less civilized than it was 200 years ago?

And what would that exception be – in the constitution, that is? Could you point out what you are referring to, or are you just saying that you PERSONALLY have an exception to the rules of the constitution?

In general, the American public is less educated now than were the colonists. This has been due to the control the government took over the education in America, to socially engineer drones, workers, obedience to the corporate state.

Article I Section IX of the Constitution states: "No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince or foreign State."

This was further enforced by the passage and ratification of the original 13th Amendment which states:
"If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honour, or shall without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever, from any emperor, king, prince, or foreign power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trust or profit under them, or either of them."

We the People must act to hold our representatives accountable. We the People must insure that all People are treated equal in all matters of law. And We the People must insist that the Federal government be restricted by the Constitution, and remedy that now!

A runaway debt and spending spree will cost us our national sovereignty and our liberty if we don't act now to correct it.

Though I deeply respect both Bill and Fred's opinions, and appreciate their willingness to "jump-into-the-fray"…it seems in view of REAL-REALITY (my opinion expressed)…their opinions are flawed…AND…what IS REAL-REALITY? Doing an "off-take" of a fairly-recent President who is credited with saying, "that depends on what the meaning of is is"…there can only be one TRUE definition of "Is"…and that Is…"IS IS!" So, from that premise, REALITY IS!" End of the story…

Approaching our current dilemma as a "people" with "global-issues"…it seems to me to continue to do the same things over and over while expecting different results, clearly IS what Eienstine supposedly said, "…is the epitome of stupidity."

Further it seems, that WHEN WE AWAKEN TO WHO WE ARE…acknowledge THE MORE PERFECT WAY…AND…Practice EQUALITY of ALL in ALL our DOINGS…THEN…and only then WILL THE CHANGE WE ALL SEEK WILL BE…i.e., we will do to others as we would have other do to us!" A "loving our neighbor as ourself" WILL BE THE NEW-REALITY…or…"The Spontaneous-Evolution" of UNCONDITIONAL-LOVE…

It is pretty evident when you look at the wording that the objects that falls under this clause are states, nations, and indian tribes which are whole groups themselves. It is never any individuals within them so the commerce power is designed to apply to different states, nations, and indian tribes as a whole. It is never citizens of states, nations, or individual members of a tribe.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution's original meaning have been repeatedly cited in U.S. Supreme Court opinions and published or cited by many top law journals (See: www.constitution.i2i.org/about/) He co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). He was a law professor for 25 years and taught constitutional law and related courses. He is the Senior Fellow in Constitutional Jurisprudence at Colorado's Independence Institute.